Lawyers differ over rape grilling

Counsel for rape accused Timothy Omotoso has faced outrage for his cross-examination of Cheryl Zondi, who has accused the televangelist pastor of grooming and sexually abusing her since she was 14 years old.

But legal experts differ on what is best practice for questioning rape complainants.

The trial against Omotoso and his co-accused, Lusanda Solani and Zukiswa Sitho, began in the high court in Port Elizabeth last week. Omotoso has 63 charges against him, including racketeering, rape, sexual assault and human trafficking, all of which he has refused to plead to.

He is accused of having trafficked more than 30 girls and women who were from branches of his church to a house in Umhlanga, KwaZulu-Natal, where he allegedly sexually abused them.

Zondi first took the stand last Wednesday.
Her cross-examination was concluded this week. Once proceedings were adjourned this Wednesday, Omotoso’s lawyer, Peter Daubermann, was reportedly followed to his car by a group of protesters, shouting at him to drop the case.

The lawyer’s cross-examination of Zondi, during which he suggested she was a willing participant in the alleged abuse, was the cause of the ire. During the cross-examination of Zondi on Monday, Judge Mandela Makaula had to reprimand Daubermann for asking her how many centimetres Omotoso had penetrated into her vagina during an alleged incident of sexual abuse.

“All those who are watching this on TV are just outraged … There is the general sense that he [Daubermann] went way overboard,” the National Prosecuting Authority’s head of communications, Bulelwa Makeke, told the Mail & Guardian.

“Ethically there has to be a certain limit in terms of how attorneys deal with this matter,” Makeke said.

But not all view Daubermann’s cross-examination style with outrage. BDK Attorneys director Piet du Plessis said: “In my view, as someone with 40 years experience, you have to do a proper job when it comes to cross-examination. Sometimes it has to be robust.”

Du Plessis argued that these are the conditions of a fair trial.

Another criminal law expert, who asked not to be named, agreed. “When you’re cross-examining in a rape case, your instructions as a lawyer are that there was no rape. You can’t be so sensitive towards the rape victim … because it’s your instructions that she wasn’t a rape victim.”

Both lawyers said that, if a defence attorney does contravene the rules set out by the Sexual Offences Act, it is up to the judge to step in.

Makaula intervened twice more: once after Daubermann had asked Zondi why she did not scream, and again when he suggested the complainant “knew that there was a risk of being raped”.

Advocate James Grant said that proponents of robust questioning fall into one of two general schools of thought regarding cross-examination. Grant falls on the softer side.

“A more subtle, gentle questioner is often able to extract from the witness the most damning admissions and contradictions,” he said.

Grant also noted that there are rules prohibiting irrelevant questioning. He said a question about the degree of vaginal penetration is “by definition gratuitous”.

Bronwyn Pithey, an advocate at the Women’s Legal Centre, agreed that the basic test for any cross-examination is relevance.

“But what happens is so much latitude is given to cross-examination — because of the underlying belief that women probably are not telling the truth — to expose so-called untruths.”

Sarah Smit

Sarah Smit both subs and writes for the Mail & Guardian. She joined the M&G after completing her master’s degree in English Literature from the University of Cape Town. She is interested in the literature of the contemporary black diaspora and its intersection with queer aesthetics of solidarity. Her recent work considers the connections between South African literary history and literature from the rest of the Continent. Read more from Sarah Smit